Posted by Bill Sandweg on 05 March 2018.

One of the favorite defenses in the Medical Malpractice Defense Playbook is to blame the patient.  I see it in almost every case I bring on behalf of an injured patient.  It is a favorite defense because it works so well.

Sitting on a jury for a medical malpractice trial can be quite stressful.  After all, here is a person who says that he or she was badly injured by a doctor or a hospital.  Someone who went to the doctor or hospital for help ended up badly damaged.  Juries do not want to believe that doctors and hospitals kill and injure people.  Understandably, it makes them uncomfortable.

When we go to the hospital or to see the doctor, we want to believe them when they tell us there is no problem and that everything will be fine.  We don’t want to believe that we can be the victims of medical negligence.  This usually means that jurors must find some reason to explain what happened to the patient and how it could not happen to them.  This is where blaming the patient comes in.  It fills this basic human need to explain how this could not happen to the juror.

It is easier to conclude that the reason the patient was injured was because he or she did act like the juror is sure he or she would have acted.  A common scenario is the patient who is sent home when they should not be sent home.  They complain at the time that they are too sick to go home but are reassured by the doctor or the hospital that it is safe.  When something bad happens because they were too sick to go home, the malpractice defendant claims they should have made it clear that they were really sick in the first place.  Or the defendant says that even after they went home, they should have turned around and come right back.  Or that the patient did not explain it well to the doctor or nurse and that is the reason they were injured.

Juries like these arguments because it allows them to say that they would have come right back or that they would never have left the hospital or doctor’s office in the first place.  Jurors believe they would have been more insistent on getting the care they needed.  They believe they would not have relied on the doctor or the nurse saying there was nothing wrong.

While accepting the blame the patient argument eases the minds of the jurors, research shows that they likely would have done just what the patient did.  We like our doctors.  We believe our doctors.  We trust our hospitals.  When we are told it is safe to go home, we figure the doctor must know more than we do and we go.  We are reluctant to call back and complain that we still don’t feel well.  We don’t want to be a burden.  We don’t want to be seen as a whiner.  We hesitate to go to the emergency room because we are afraid it will annoy the doctor who just sent us home.

Human nature gets us coming and going.  Human nature prompts us to do what the doctor tells us to do and human nature prompts the jurors to say that we should have known better than to rely on the doctor.   The moral of the story is to be vigilant and complain to anyone who will listen.